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295 F.

2d 355

Charles R. JORDAN, Appellant,


v.
UNITED STATES of America, Appellee.
No. 6764.

United States Court of Appeals Tenth Circuit.


Oct. 12, 1961, Certiorari Denied Jan. 22, 1962, See 82 S.Ct.
479.

Elmore A. Page, Tulsa, Okl., for appellant.


James L. Burton, Asst. U.S. Atty., Oklahoma City, Okl. (Russell H. Smith,
U.S. Atty., Tulsa, Okl., was with him on the brief), for appellee.
Before LEWIS and BREITENSTEIN, Circuit Judges, and CHILSON,
District judge.
BREITENSTEIN, Circuit Judge.

Jordan was found guilty by a jury of the purchase and sale of narcotics in
violation of 26 U.S.C. 4704(a) and 4705(a). He seeks to reverse the judgment
on the grounds that the court erred in denying his motion to quash the jury
panel and in asking certain questions of government witnesses.

Defendant was tried twice on these charges during the same jury term. In the
first trial the jury disagreed and a mistrial was declared. Prior to defendant's
second trial, and in the same term, 13 other defendants in narcotics cases had
been tried and convicted. The government witnesses against this defendant had
testified in some of the other trials.

Before the second trial, defendant filed a motion to quash the jury panel
alleging the mistrial, the number of other cases involving narcotic violations
and heard by some members of the same jury panel, and the publicity given
such trials as reasons for the impossibility of a fair trial for him before the jury
panel. He offered no evidence in support of the motion and the trial court ruled
against him.

There were 28 jurors on the panel called for defendant's second trial. Of these,
6 were new and had been on no juries during the term in question. In the
voirdire examination of the jurors called into the box the court interrogated
them with reference to the publicity given the previous narcotic trials and the
effect upon them of the mistrial. With permission of the court, defense counsel
propounded questions to the prospective jurors as to their attitude towards
narcotic cases and as to possible effect of the conviction of other defendants of
narcotic charges in cases in which some of them sat as jurors. There were no
challenges for cause and the defendant exercised only 5 of his 10 peremptory
challenges. The jury as selected consisted of 4 of the new members of the
panel, 2 from the old panel who had sat on none of the previous narcotic cases,
and 6 of the old panel who had been on such cases.

The record is devoid of any showing as to the character and extent of the
publicity attending the mentioned narcotic trials. Accordingly the defendant's
contention may be considered only as to the ground that the panel called for his
trial was made up of jurors who had been on the panel during the previous
narcotic trials. This is not persuasive as 6 of the panel were new and a challenge
such as made here raises the sole question of the invalidity of the entire panel
because of some vitiating defect or irregularity.1 By his failure to exercise any
callenge for cause and by his use of only half of his peremptory challenges, the
defendant has waived the right to complain that he was not tried by an impartial
jury.2

In the course of the trial the court propounded certain questions to the witness
Potter, an addict-informer, and to the witness Casey, a federal narcotic agent.
Prejudicial error is said to result therefrom because the actions of the court
bolstered the credibility of the witnesses, indicated a partial attitude on the part
of the court, and invaded the province of the jury. A judge presiding over a jury
trial in federal court is more than a mere umpire. He has both the responsibility
of assuring the proper conduct of the trial3 and the power to bring out the facts
of the case.4 The questions complained of were for the purpose of clarification
to enable the jury to better understand the case. They did not constitute
advocacy by the judge and did not evince hostility towards the defendant. In his
instructions to the jury the trial judge stated that if he had made any statement
or left any impression as to his views with which the jury disagreed, the jury
should follow its own judgment as it had the responsibility to decide the facts.
There was no objection by defense counsel to the instructions. The
interrogations by the court were within the range of his judicial authority and
did not constitute any abuse of discretion.

Affirmed.

United States v. Gordon, 7 Cir., 253 F.2d 177, 184, reversed on other grounds
344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447

Graham v. United States, 6 Cir., 257 F.2d 724, 729, and cases there cited

Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680, rehearing
denied Kretske v. United States, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222

United States v. Rosenberg, 2 Cir., 195 F.2d 583, 594, certiorari denied 344
U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687, rehearing denied 344 U.S. 889, 73 S.Ct.
134, 97 L.Ed. 687, stay vacated 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607